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School boards may now impose an hourly FOIA search fee

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By JD Supra Business Advisor

A recent decision by the West Viginia Supreme Court of Appeals has now paved the way for public bodies, including boards of education, to impose a reasonable hourly search fee for Freedom of Information Act (FOIA) requests.

It is not uncommon for a county board of education to receive at least one FOIA request per week. For example, most, if not all county boards of education received a FOIA request last month from the West Virginia School Service Personnel Association (“WVSSPA”) requesting a number of public records relating to, among other things, payments and/or expenditures for services, etc., with their respective RESA.

When a county board of education receives a FOIA request, we all know that the applicable statute governing the right to a requester’s inspection and copying is found in W. Va. Code 29B-1-3. And, most if not all, counties have a policy in place requiring the requester to pay a reasonable duplication/copy charge. Even the West Virginia Department of Education requires 40 cents per page in State Policy 1230.

Many of the FOIA requests that a county board of education receives, similar to the recent WVSSPA request, require a tremendous amount of time for staff to locate, assemble, and/or copy the responsive documents. This always leads to the question of: Can a Board of Education impose a search or retrieval fee in connection with a FOIA request to provide public records, provided such fee is reasonable? In the past, our Education Law Practice Group has provided the opinion that a search fee is likely not permissible.

However, the West Virginia Supreme Court of Appeals, by a decision dated April 10, 2014, ruled “a public body is vested with the authority and discretion to impose a search and retrieval fee in connection with a FOIA request to provide public records provided that such fee is reasonable.”

The facts in the recent decision related to an ordinance enacted by the City of Nitro that permitted an hourly charge for document requests requiring more than ten minutes of employee time (the ordinance provided for a $25.00 per hour for its employees’ time to search for and/or compile requested records). The requester requested records including an ordinance, meeting minutes, transcripts or other documentation of the adoption of the requested ordinance. The request is fairly similar to the requests received by county boards of education.

In support of the hourly fee, the City relied upon the language in W. Va. Code 29B-1-3, which states, “The public body may establish fees reasonably calculated to reimburse it for its actual cost in making reproductions of such records.” The requester argued that only duplication/copy charges were permissible. The Court, ruling in favor of the City, ruled as stated above, finding that such fees may be imposed if reasonable. In sum, the decision now provides guidance to public bodies like a county board of education on the recovery of fees, which now means more than just actual costs of duplication. We would caution that in the recent case decided by the Court, the City had a specific ordinance in place providing for a search fee in connection with a FOIA request. If your board of education gives consideration to implementing a search fee, it should be done in the form of a board approved policy, and be certain that such a fee is "reasonable."